A Service Contract for the Heir to the Throne

This article is an attempt to launch a debate on the constitutional disparities between the state sponsored Duchy of Cornwall private estate operating in Cornwall and the state sponsored public Crown Estate operating in the remainder of the United Kingdom.

A debate on constitutional matters is a central freedom in most democratic societies. The individual has the right to be constantly aware of the need for vigilance to prevent the abuse of power and to have at his or her disposal tools such as a written constitution and a Constitutional Court. This sort of freedom should also become the generally accepted rule in the United Kingdom.

With substantial historic and current evidence indicating that the Duchy of Cornwall estate is a state sponsored and state supported institution, the government has, nevertheless, arbitrarily pronounced the Duchy to be a private estate. To resort to ‘private’ for the Heir to the Throne is a blatant departure from constitutional principles. The government must be fully aware that such action was the only option available to them by which to hide Cornish and Duchy history, as an implied state secret, in order to prevent debate on a long standing constitutional and racial legacy from the feudal age, rather than, that is, facing up to the truth.

So, what might the truth be?

It is contended that the three Duchy of Cornwall Charters are incompatible with the Bill of Rights, an Act of Parliament in 1688. (Refer item 2 Is change possible?).

The Bill of Rights 1688 sets out the service contract for a Monarch as well as the rights of members of Parliament and makes reference to “the people” indicating democracy or government by “the people”. Recent revelations of media ‘phone hacking’ have helped to focus on the fact that there is more to democracy than the possibility of having a general election decided by media bias. The United Nations expects governments to: “Support the rule of law:….. have a constitution, or its equivalent, as the highest law of the land….. with legal certainty and equality before the law….laws equally enforced ….holding public officials and institutions to account including the state itself”. (Report of the Secretary General S2004/616).

With no other document in sight, the Bill of Rights 1688 is clearly of “the highest law of the land” category for the UK and should be a pillar of legal certainty and equality before the law for everyone owing, in particular, to its place in history following the Civil War and its immediate aftermath. Article 1 provides: “That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal”. There is also a democratic dimension with: “the rights and liberties of the people of this Kingdom shall be strictly observed”. The Bill of Rights as a constitutional service contract should take precedence over the service contract for Cornwall of the Duke of Cornwall heir to the throne. However, the third Duchy of Cornwall charter of 1337, for example, authorises the Duke, as the future Monarch, to exercise imperial power only in Cornwall in the form of: “the return of all writs of us and our heirs, summonses of Exchequer and do any other official act (officium) there”. This service contract effectively permits the Heir to treat specifically Celtic Cornwall as a second class Crown estate.

The service contract for persons chosen to be future Monarchs by the royal Duchy of Cornwall charters were intended to authorise the use of royal prerogative power in a pre-democratic era in order to secure for all time an income from Cornish minerals and natural assets. In 1337, before the word democracy (government by the people) entered the English language, Cornwall was in effect included within the parliamentary denial of responsibility encapsulated in the slogan: “the King should live of his own” and what he took became his own. By this adaptation of the law were the representatives of the English national majority relieved of paying and collecting taxation for the upkeep of the heir to the throne. The royal Duchy is, therefore, a legacy of arbitrary government and absolute imperial power above statutory law and beyond democratic principles stretching back over a period of more than six centuries with scarce regard for either a constitution or a social contract.

It was widely reported that George Osborne, the Chancellor of the Exchequer had announced (1st July 2011) that “rules which ring fence funding for male heirs would be torn up”. This presents an ideal opportunity for a public inquiry to determine the continuing impact on Celtic Cornwall of the Duchy of Cornwall and the Land Registration Act 2002, introduction para 4 of which reveals: “The Crown is the only absolute owner of land”. Many people would like to know the reason why.

Absolute financial power at the top is reflected in a “Memorandum of Understanding”, or service contract, between Crown and Parliament, for the support of the Monarchy as revealed to the House of Commons on 9th July 2002, by the Paymaster General. (Hansard, Columns 220WH to 225WH). The Minister revealed: “The basis for the Memorandum of Understanding” (or service contract) “is the long standing rule of statutory construction that statutes do not bind the Crown, including the Queen in her private capacity”.

The apparently innocent reference to: “The Queen in her private capacity” includes the Duke of Cornwall which means, by necessary implication, that the service contract for the Duke is included. (Crown Proceedings Act 1947, s.38(3)). This is because section 40 (1) of that Act states: “Nothing in this Act shall authorise proceedings against His/Her Majesty in his/her private capacity”, clearly, in order to protect “the rights, property or profits” {section 40 (2g)} of the Duke. For a precise definition of “a long standing rule of statutory construction” an opinion would usually be sought from the Attorney-General to the Crown or to the Attorney-General of the Duchy of Cornwall, who would act on behalf of the Duke, the Prince of Wales, in his constitutional capacity.

In a major departure from the principle of equality before the law, state assistance is however guaranteed by statute: “HM Treasury shall have regard to the interests of present and future Dukes”. (Duchy of Cornwall Management Act 1982, section 8). In apparent conflict with this statutory duty to have regard to the financial interests of present and future Dukes, the Treasury has stated: “The Duchy of Cornwall remains a private estate because it has never been taken into pubic ownership by purchase, under statute or otherwise”. (HM Treasury, 26.03.2006). This means that the service contract for the Heir to the Throne has become secret under the assumed title of a “private estate” and also free from investigation into the unique statutory protection of its interests by the state according the Her Majesty’s Treasury.

Promotion of the Duchy of Cornwall as a private estate completely ignores the input to the service contract made by legal and constitutional authorities who have put on record that the activities of the Duke and Duchy of Cornwall are as public as those of the Crown. “The public has an interest in all these matters since the Crown is equally concerned when there is no Duke the Duchy belongs to the Crown”. (Rowe v. Brenton, Trial at Bar, 1828, The Lord Chief Justice at p.110, Concanen edition 1830, 8B @ C737). “The King’s affairs and concerns touch the whole Kingdom, and especially when they regard the Prince”. (Lord Coke’s The Prince’s Case, 1606, 8 Co.Rep 28a). “The public requires greater scrutiny and accountability in all areas of the establishment”. (Henry Potter, The Observer, 17th July 2011).

The service contract for the Duke and Duchy of Cornwall concerns: “rights, property and profits” with freedom from “scrutiny and accountability”. The Duchy of Cornwall Management Act 1863, which is still in force, at section 37 includes a list of “Possessions” beginning with, “regalities”. Confirmation of official Duchy government activities behind the scenes in Cornwall lies within the definition of the word “regalities”: (a) jurisdiction conferred by the sovereign on a powerful subject” and (b) “a territory under such jurisdiction”. (Collins English Dictionary – Complete and Unabridged – from FARLEX – free online dictionary).

“Regalities” may also be interpreted as applicable only to Cornish land in keeping with the right to “official acts” of the third Duchy Charter. Acts of Royalisation rather than nationalisation are considered to be appropriate since nationalisation would have connotations of land belonging to, or under the control of, the people, which, is clearly not the case.

“Regalities” as a possession or the royalisation of land or the prerogative in tenure, or official acts, confirms the existing unique financial powers of a royal Duke of Cornwall, the future Monarch, to rule over Celtic Cornwall to provide himself with an income. This element of the service contract should have been repealed by the Bill of Rights 1688.

The principle of: ‘The Sovereign can do no wrong’ as a unique Sovereign quality has been bestowed by the Sovereign on the Duke in Cornwall. This appears to be an example of the unlimited use of the “regal power” that the Bill of Rights intended to abolish along with the three Duchy of Cornwall Charters of 1337/8 in 1688.

There was no fear of controlling the use of royal power by Magna Charta or The Bill of Rights when these were implemented. However, since then, the will to impose checks and balances and the separation of powers inherent in democratic control of power have become a no-go area through the distraction of the historic trend of the legislature towards extending the prerogative and crown exemptions to satisfy the ‘private’ financial interests, of the Duke of Cornwall. Ultimately, Duchy of Cornwall exemptions facilitate exemptions from the principles of democracy.

Under such circumstances, the royal prerogative has been retained as a sort of “off balance sheet” service contract, an implied Memorandum of Understanding transparent in respect of legitimate public emergencies but, in addition, used to promote in secret unlimited establishment financial interests about which no questions can be asked. This failure to prevent the unlimited use of the prerogative in English law has resulted in a secretive grace and favour financial system behind the scenes.

The financial interests and policies for Cornwall of the heir to the throne are protected by statutory exemption from the Freedom of Information Act 2000, section 37. The Act indirectly confirms that the imperial powers exercised in Cornwall by the Duke of Cornwall as the next Monarch, are a state secret.

That is not all. There is an injunction in the House of Commons to limit questions regarding the Duchy of Cornwall (House of Commons letter to Andrew George M.P., 16th June 1997). Then there is the right of the Monarch and the Duke of Cornwall to give their consent to Bills proposed before enactment in order to protect their respective financial interests. (Cabinet Office: Queen’s Consent, 8th July 2009).

These facilities clearly entail restrictions on the powers of Members of Parliament and the interests of the public while enhancing the powers of the Attorney-General to the Crown and the Attorney-General of the Duchy of Cornwall, incorrectly referred to as the Attorney-General to the Prince of Wales.

The Prime Minister revealed in the House of Commons (Hansard 25th March 1996 ref 22811), “No formal title to the lands of the Duchy of Lancaster is vested in the sovereign and of the Duchy of Cornwall in the Prince of Wales (The Duke of Cornwall). However, neither the sovereign nor the Prince of Wales is able to dispose of the estate’s capital; they are entitled only to the annual income”. This means there is not only a political and public Crown Estate but also a separate private royal Duchy of Cornwall estate carved out of the “all land” claimed for the Monarch in 1066 by William the Conqueror. The statutory position is: “Title to land – The Crown is the only absolute owner of land in England and Wales”. (Land Registration Act 2002, introduction para 4). It is difficult to understand why this form of royal service contract for land has been retained.

The result is that all land reserved by or for the Monarch is constitutional whereas, Cornwall, comprising the Crown land sub-let by the Monarch to the future Monarch is private albeit with exceptional prerogative and statutory support. This fact appears to be institutionally unsuitable for inclusion in any written, dispersed or implied British constitution or social contract.

With no specific reference to an authority for the “entitled annual income” from a “private estate” for the future Monarch, there is a suspicion that the absence of legal certainty leaves the door open for a state to indulge in institutional racism while arranging statutory protection for people in power under a cloak of crown immunity.

English law for the Duchy of Cornwall, covers the whole of Celtic Cornwall on account of its third charter provision of prerogative rights only in Cornwall exercised as statutory “regalities”. Such unlimited royal powers have extended the Duchy service contract to include Duchy financial interests in Cornwall in mineral rights, royal and base minerals, treasure trove, wrecks, wines, royal fish, foreshore, intestate estates, bona vacantia, castles, the reclassification of cultural assets, the appointment of the Sheriff and exemption from the registration of land, (Land Registration Act 2002, section 84), all, regardless of any social contract or the democratisation of the Duchy service contract implied by the Bill of Rights.

‘The legal meaning’ for “Crown lands” is: “The lands which the Sovereign enjoys in her political capacity in right of the Crown”. (Halsbury’s Constitutional Law 4.Ed: Vol.8: para.1416). The Crown Estate Act 1961 at sections 3 & 4 authorises the Crown Estate, excluding any element of monopoly, to provide social benefits and marine stewardship funds throughout the United Kingdom, but not in Cornwall. In 2005, the Crown Estate gave written conformation that: “The analogous landowner in Cornwall is the Duchy of Cornwall”. The royal Duchy of Cornwall does not provide a similar Crown Estate service in Cornwall. A Freedom of Information request to the Ministry of Justice of 15th April 2010 regarding the Crown Estate was ignored.

The question was:- Please provide copies of documents held containing information as to why the Crown Estate withholds from Cornwall its otherwise United Kingdom wide programme of social and cultural benefits as displayed at: www.crownestate.co.uk.

“The legal background to the Duchy (of Cornwall) makes it clear that it belongs to the Crown. What is invidious about the position of the Duchy is its compromising of the original principle of English constitutional law,that the Monarch should be dependent on Parliament for finance”. (Who Owns Britain, Kevin Cahill, Canongate, Edinburgh, 2002, page 91).

The original principle of English constitutional law was that Parliament would raise the necessary taxes to provide an income for present and future Monarchs.

As an exception to this constitutional rule, the Celtic country of Cornwall, its minerals, land and archaeological assets, were chosen as a means to relieve English people of their constitutional duty of paying taxes for the upkeep of the heir to the throne. The imperial tool to achieve this objective is the Duchy of Cornwall which the government claims is private in direct conflict with the same sources of legal precedent otherwise quoted to confirm Duchy rights and powers etc.

Now hiding behind the convenience of an unpublished “private” service contract with the state, the Duchy is in a position to promote secret policies. For example, exploiting political power to convert Cornish/British culture into English/Anglo-Saxon culture without respect for the common British nationality as in the case of the Arthurian Tintagel.

If the Duke of Cornwall as the future Monarch exercises the power of the state to promote the financial interests of a private estate in secret by virtue of the second and third Duchy of Cornwall charters, then the principles of democracy were disregarded in Cornwall to enable Cornwall, recognised as a separate and foreign country in the Mappa Mundi of Hereford, to be exploited without an effective remedy in English law.

While the entitlement claimed for the Duke, as the future Monarch, is an income as a result of the transfer of property in Cornwall to a state controlled private estate, then English law for Cornwall remains at odds with English constitutional law.

There is an historical lesson to be learned in respect of the unlimited prerogative powers of the royal Duchy of Cornwall which required Cornwall to be administered as a separate country to permit its unofficial use as an apprenticeship for Kingship, in particular, in the case of Charles the First, 1600 to1649.

A former high ranking official of the Duchy has observed, in respect of Charles the First as Duke of Cornwall:- “The Prince may have become the victim of his own success, believing that he could govern the realm as he had the Duchy”. (The Estates of the English Crown 1558 – 1640, (Ed. R.W.Hoyle), Graham Haslam, Cambridge University 1992, p.296). The Bill of Rights 1688 obviously intended to avoid a repetition of a failed constitution by its implied repeal of the three Duchy of Cornwall Charters of 1337/8 as no longer applicable to the Duke’s service contract.

The House of Commons Public Administration Select Committee in its report, PASC 19 of 13th November 2009, on the nature and role of the Royal Prerogative, observes:- “Courts are institutionally unsuited to resolving these kinds of problem, which are best left to be decided in the political arena”. The representatives of political parties as members of the PASC Committee concluded their report as follows: “It remains impossible to define the exact limits of the prerogative”. The Committee did not include land in its list of prerogatives whether under the title: “prerogative in tenure” or the “prerogative of land” or the “royalisation of land since 1066” or “regalities”.

Lack of legal certainty was highlighted by the House of Commons Home Affairs and Pensions Committee in its first report 2005/6. It declared, in relation to “a public function in which no relevant duty to care would exist” – “a function that falls within the prerogative of the Crown or is, by its nature, exercisable only with authority conferred – (a) by the exercise of that prerogative, or (b) by or under an enactment“.

The Committee concludes, “We are unclear about exactly which situations would fall under this definition. This uncertainty was shared by witnesses……….”

There is no recommendation to control the use of power. There is an ‘in house’ failure to promote legal certainty. This spectacle of legislators as spectators of unlimited prerogative law leaves the door open for the abuse of power.

It is noted that the principle of legal certainty is not the norm in the United States of America. In the United States the principle of “legal indeterminacy” prevails. Legal indeterminacy in the United States is concerned principally with: “protection against arbitrary government action by controlling the use of power to make and apply law”. This principle is based on the practical and realistic concept that: “law is nothing more than politics by another name”. (“Legal Certainty: A European Alternative to American Indeterminacy by James R. Maxelner – Excerpt from: LexisNexis).

Royal advisors have opted for the undemocratic legal certainty of secrecyto cover up the past and present relationship of Cornwall with the Duchy of Cornwall. This policy is maintained in many ways, including attempts to suppress the Cornish Celtic identity. For example, in a demonstration of the grace and favour system of aggressive English nationalism, the Cornish have been excluded from the provisions of the legally binding Council of Europe human rights Framework Convention for National Minorities for the past ten years as if Cornwall had been secretly excluded from the provisions of the Bill of Rights 1688.

The mysteries of the imperial service contract of the heir to the throne has left many unanswered questions. These should long since have been answered as an integral part of constitutional support for a social contract with all British people, that is, a one-stop written constitution in place of a business plan thriving on exploiting crown immunity.

Is change possible?

1. There is no democratic reason why Parliament should provide the royal establishment with a “Memorandum of Understanding” and not also provide the British public with documents defining the limits of power in a service contract for the Heir to the Throne, the Duke of Cornwall, and a social contract or constitution for the people.

2. There is no democratic reason why the three charters of the Duchy of Cornwall were not repealed as incompatible with the Bill of Rights in 1688, the text of which, in respect of “pretence of prerogative” etc., declares in plain English: “All which are utterly and directly contrary to the known laws and statutes and freedoms of this realm”. The evidence suggests that Cornwall was officially accepted as a foreign country, that is, Celtic British not Anglo-Saxon British, for which the Bill of Rights was not officially considered to be applicable in order to facilitate profitability for the Duke of Cornwall.

3. There would be no reason for a housing crisis if the royal land monopoly, however ingeniously classified, whether Crown or Duchy, public or private, was subject to taxation.

4. There is no democratic reason to include a possession of “regalities” in the Duchy of Cornwall Management Act 1863 intended for Cornwall and not include such absolute powers, privileges and rights in the Crown Estate Act 1961 applicable elsewhere in the UK.

5. If Crown land is part of “all land” royalised in 1066, then, the Duchy of Cornwall land was also part of that “ all land” in 1066, which means, that the Duchy of Cornwall is also royalised land (not nationalised for the people) and certainly not private.

6. There is no democratic reason for the Crown Estate to be a public, political and constitutional entity while the Duchy of Cornwall is an unmentionable, secret and unchallengeable private entity.

7. There is no democratic reason for the Crown Estate Act 1961 section 4 and the Duchy of Lancaster Act 1988 section 1 to include a duty to provide charitable deeds when this duty is excluded from the Duchy of Cornwall Management Act 1982.

8. There is no democratic reason why “The Duke of Cornwall’s Benevolent Fund” (Reg.No.269183) should distribute the income from intestates collected in Cornwall in “The United Kingdom and elsewhere” when the Duchy of Lancaster Benevolent Fund (Reg.No.1026752) restricts the distribution of its similar income to the same area from which it is collected.

9. There is no democratic reason for the Duchy of Cornwall estate to be managed by the Duke and be exempt from the registration of its land and the beneficiary of implied crown immunity in planning law while the Crown estate is managed by an independent Commission required to reveal all and act with transparency.

10. There is no democratic reason for the Duchy of Cornwall to be exempt from the Freedom of Information Act 2000 while the Crown Estate is not and is obligated to answer questions.

11. There is no democratic reason why the income for the Duke of Cornwall, as the future Monarch, should not come from the same general taxation source as constitutionally required for the Monarch.

12. The current Equality Act 2010 has had its section 1 withdrawn by the government leaving the Act without the provision for: “Public sector duty regarding socio-economic inequalities”. (Hansard 18th November 2010 column 1057). A “Public sector duty regarding socio-economic inequalities” in relation to Duchy of Cornwall financial interests in Cornwall has been swept under the carpet for centuries. This depleted Equality Act provides a clear cut example of institutionalised racism.

Conclusion

The public have the right to expect that: “A Service Contract for the Heir to the Throne” will impose conditions to guarantee: the democratic “rights and liberties of this Kingdom shall be strictly observed” and also that: “laws will be equally enforced”.